Land and Environment Court New South Wales Medium Neutral Citation: McIntyre Development Pty Ltd v Ku-ring-gai Council [2023] NSWLEC 1760 Hearing dates: Conciliation conference held on 17 July, 23 August, 18 September, 27 October and 13, 20 and 24 November 2023 Date of orders: 19 December 2023 Decision date: 19 December 2023 Jurisdiction: Class 1 Before: Pullinger AC Decision: The Court orders that: (1) Leave is granted to the Applicant to amend Development Application DA0038/23 and rely upon the amended plans and documents referred to in condition 1 at Annexure A. (2) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent's costs thrown away as a result of amending the Development Application in the agreed sum of $28,228 within 28 days of the date of these orders. (3) The Applicant's written request, pursuant to cl 4.6 of the Ku-ring-gai Local Environmental Plan 2015 (KLEP), seeking to vary the development standard for height of buildings as set out at cl 4.3 of the KLEP, is upheld. (4) The Applicant's written request, pursuant to cl 4.6 of the KLEP, seeking to vary the development standard for site dimensions as set out at cl 6.6 of the KLEP, is upheld. (5) The appeal is upheld. (6) Consent is granted to Development Application DA0038/23 (as amended) for demolition of existing structures and construction of two residential apartment buildings comprising 31 apartments over basements and associated civil and landscaping works at 26, 28 and 30 McIntyre Street, Gordon, subject to the conditions of consent at Annexure A. Catchwords: DEVELOPMENT APPLICATION – residential apartment building – cl 4.6 written request – height of buildings – site dimensions – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15 Environmental Planning and Assessment Regulation 2021, ss 29, 38 Land and Environment Court Act 1979, s 34 Ku-ring-gai Local Environmental Plan 2015, cll 2.3 4.3, 4.6, 6.1, 6.2, 6.3, 6.4, 6.5, 6.6 State Environmental Planning Policy (Sustainable Buildings) 2022 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 10 State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.122 State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development Texts Cited: NSW Department of Planning, Apartment Design Guide (2015) Department of Planning and Environment, Planning Circular PS 18-003, February 2018 Category: Principal judgment Parties: McIntyre Development Pty Ltd (Applicant) Ku-ring-gai Council (Respondent) Representation: Counsel: A Lindeman-Jones (Solicitor) (Applicant) C Rose (Solicitor) (Respondent) Solicitors: Addisons (Applicant) Wilshire Webb Staunton Beattie Lawyers (Respondent) File Number(s): 2023/100715 Publication restriction: Nil JUDGMENT 1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), brought by McIntyre Development Pty Ltd (the Applicant), against the deemed refusal of Development Application DA0038/23 (the DA) by Ku-ring-gai Council (the Respondent). At the time of its lodgement, the DA sought consent for the demolition of existing structures and the construction of two residential apartment buildings containing 29 apartments over two levels of basement parking and associated civil and landscaping work at 26-30 McIntyre Street, Gordon (the site). 2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 17 July, 23 August, 18 September, 27 October and 13, 20 and 24 November 2023. I presided over the conciliation conference. 3. During the conciliation conference, the parties reached agreement as to the terms of a decision in these proceedings that would be acceptable to the parties. The agreement involves the Court upholding the appeal and granting development consent to an amended DA, subject to conditions. 4. Of particular note, the proposal has been amended by agreement between the parties to resolve the contentions initially raised by the Respondent, which included issues of exceedance of the relevant floor space ratio control, exceedance of the relevant height of building control, failure of the site to meet minimum dimensions for lot depth and width, design quality issues more generally, site coverage and provision of deep soil, and the proposed mix of apartment sizes, amongst other contentions. 5. Agreed design amendments have been made to improve the DA's relationship to existing neighbouring residential apartment buildings and to improve the amenity provided within the proposal. The final amended DA comprises a total of 31 apartments. 6. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if the parties' decision is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the amended DA. 7. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. 8. In that regard, I am satisfied the DA was made with the consent of the owner of the land, evidenced within the Class 1 Application accompanying this matter. 9. The DA was publicly notified from 10 February to 12 March 2023. Fourteen submissions were received by the Respondent raising issues including concerns for parking and access, traffic congestion, building bulk, scale and setbacks, overshadowing and loss of outlook impacts, cross viewing and acoustic privacy impacts, tree removal, structural impacts upon neighbouring buildings, and drainage and flooding issues associated with a watercourse situated partly on the site. 10. At the commencement of the conciliation conference, the Court benefited from oral submissions made by a number of local residents emphasising issues of concern. 11. During an adjournment of the conciliation conference, the amended DA was re-notified to affected neighbours between 11 and 25 October 2023. 12. The parties agree that the amended DA now satisfactorily resolves the matters raised in public submissions. Accordingly, I am satisfied that s 4.15(1)(d) of the EPA Act has been appropriately addressed. 13. The parties agree, and I am satisfied, that the Ku-ring-gai Local Environmental Plan 2015 (KLEP) is the relevant local environmental planning instrument. The site is zoned R4 High Density Residential and the proposed development - characterised as a residential apartment building - is permissible with consent. 14. The parties agree, and I am satisfied, that pursuant to cl 2.3 of the KLEP, the proposed development is consistent with the R4 High Density Residential zone objectives, which include to provide for the housing needs of the community within a high density residential environment and to provide a variety of housing types within a high density residential environment. 15. The parties agree, and I am satisfied, that all principal development standards of the KLEP have been met by the amended DA, with the exception of cl 4.3 - Height of buildings, and cl 6.6 - Requirements for multi dwelling housing and residential flat buildings. 16. In such an instance, cl 4.6(3) of the KLEP requires consideration of a written request from the Applicant demonstrating that compliance with each of these development standards is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard. 17. Clause 4.6(4) of the KLEP requires the consent authority to be satisfied that each of the Applicant's written requests has adequately addressed the matters required by cl 4.6(3), and that the proposed development will be in the public interest because it is consistent with the objectives of the particular development standard and the objectives for development within the zone in which the development is proposed to be carried out. 18. Additionally, cl 4.6(4)(b) of the KLEP requires the concurrence of the Planning Secretary be obtained, while cl 4.6(5) requires the Planning Secretary to consider whether, in granting this concurrence, the proposed contravention of the development standard raises any matters of significance for State environmental planning, the public benefits of maintaining the standard, and any other matters required to be considered by the Planning Secretary. Given the earlier written advice of the Planning Secretary (in the form of Planning Circular PS 18-003 issued on 21 February 2018), the Court may assume the concurrence of the Planning Secretary in this matter. 19. As required by cl 4.6 of the KLEP, the Applicant has provided a written request seeking to vary the height of buildings development standard, prepared by Mecone and dated September 2023. 20. The parties agree, and I am satisfied, that this written request adequately justifies the proposed variance to the height of buildings development standard of 17.5m for the following reasons: 1. The amended DA proposes a maximum building height of 19.55m, exceeding the development standard by 2.05m and representing a variation of approximately 11.7%. 2. The areas of exceedance to the maximum building height standard are generally centred within the building footprint and are attributable to lift overruns and non-habitable components of the DA. 3. The DA has been amended during the conciliation conference to introduce increased upper-level setbacks such that the non-compliant areas are unable to be perceived in the general presentation of the building to the street and configured in a manner that is broadly consistent with the scale of development appropriate to the locality. 4. The proposed height exceedance does not give rise to additional adverse visual impacts, overshadowing, disruption to views or loss of privacy to neighbouring properties. 5. The objectives of the KLEP Zone R4 High Density Residential land use zone include providing for the housing needs of the community within a high density residential environment and providing a variety of housing types within a high density residential environment. I am satisfied the amended DA meets these objectives. 6. The objectives of cl 4.3 of the KLEP include ensuring that the height of buildings is appropriate for the scale of the local area, and to enable development with a built form that is compatible with the size of the land to be developed. I am satisfied the amended DA meets these objectives. 1. Consequently, I am satisfied the Applicant's cl 4.6 written request adequately justifies the proposed variation to the height of buildings development standard, and I find to uphold the written request. 2. Similarly, the Applicant has provided a written request seeking to vary the development standard for minimum lot dimension, prepared by Mecone and dated November 2023. 3. The parties agree, and I am satisfied, that this written request adequately justifies the proposed variance to the minimum lot width and depth development standard of 30m for the following reasons: 1. The subject site has an irregular 'L-shaped' geometry and total area of 3,360.1sqm. The rear portion of the site has a minimum dimension of 22.18m, falling short of the development standard by 7.82m and representing a variation of approximately 26.1%. 2. The larger, street-facing portion of the site has a minimum width of approximately 33m, which is consistent with the development standard, while the non-compliance is situated towards the rear of the site, a portion currently occupied by an existing single detached dwelling. 3. The surrounding pattern of development and recent renewal, consistent with the Zone R4 High Density Residential land use, makes site amalgamation unlikely. 4. The amended DA proposes a four-storey residential apartment building in the rear portion of the site that is slim in its plan form and set back 6m from each adjacent site boundary to allow for appropriate building separation and for the establishment of landscape. 5. The objectives of the KLEP Zone R4 High Density Residential land use zone include providing for the housing needs of the community within a high density residential environment and providing a variety of housing types within a high density residential environment. I am satisfied the amended DA meets these objectives. 6. The objectives of cl 6.6 of the KLEP include providing for the orderly and economic development of residential land while maintaining the local character, and ensuring that lot dimensions of high density residential sites allow for generous landscaped areas and setbacks to ensure the amenity of adjoining properties and to support the desired future character of these areas. I am satisfied the amended DA meets these objectives. 1. Consequently, I am satisfied the Applicant's cl 4.6 written request adequately justifies the proposed variation to the minimum lot width and depth development standard, and I find to uphold the written request. 2. The parties agree, and I am satisfied, that pursuant to cl 6.1 of the KLEP - Acid sulfate soils - the site is mapped as being within a Class 5 acid sulfate soils area. The DA is not located within 500m of any adjacent mapped Class 1, 2, 3 or 4 acid sulfate soils, works are not proposed below 5m Australian Height Datum (AHD), and is unlikely to result in the water table being lowered below 1m AHD. Accordingly, I am satisfied that no acid sulfate soils management plan is required. 3. The parties agree, and I am satisfied, that the amended DA proposes excavation forming a matter for consideration pursuant to cl 6.2 of the KLEP - Earthworks. The Applicant has provided a Geotechnical Investigation Report prepared by Cardno dated 30 November 2022, and the amended DA includes amended stormwater management and civil plans prepared by JCO Consultants, dated 7 August 2023. I am satisfied these reports and plans address the matters set out at cl 6.2(3). Agreed conditions of consent reflecting the reports' recommendations are imposed. 4. The parties agree, and I am satisfied, that pursuant to cl 6.3 of the KLEP - Biodiversity protection - the site is identified within the Terrestrial Biodiversity Map. The Applicant has provided a Biodiversity Assessment Report prepared by Travers Bushfire and Ecology dated 30 June 2022, addressing the matters set out at clause 6.3(3) of the KLEP. The parties agree, and I am satisfied, that the DA (as amended) meets the objectives of cl 6.3 and the site is suitable for the proposed development. 5. The parties agree, and I am satisfied, that pursuant to cl 6.4 of the KLEP - Riparian land and adjoining waterways - the site is identified within the relevant Riparian Lands and Watercourses Map and the site's southern boundary comprises Category 3 riparian land. The Applicant has provided a Biodiversity Assessment Report prepared by Travers Bushfire and Ecology dated 30 June 2022, and Watercourse Constraints Assessment Advice prepared by Travers Bushfire and Ecology dated 24 May 2022, which both address those matters set out at cl 6.4(3) of the KLEP. 6. The parties agree, and I am satisfied, that pursuant to cl 6.5 of the KLEP - Stormwater and water sensitive urban design - the amended DA is supported by Watercourse Constraints Assessment Advice prepared by Travers Bushfire and Ecology dated 24 May 2022, and by Stormwater Management and Civil Plans, prepared by JCO Consultants, dated 7 August 2023, which meet the objectives of cl 6.5. 7. The parties agree, and I am satisfied, that State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) is an additional relevant environmental planning instrument. The parties agree, and I am satisfied, that the site has been historically used for residential purposes unlikely to result in contamination. Accordingly, I am satisfied the amended DA addresses those matters outlined in s 4.6 of SEPP Resilience and Hazards. 8. The parties agree, and I am satisfied, that the DA (as amended) is subject to the provisions of State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP 65). 9. Further, and pursuant to the provisions of the Environmental Planning and Assessment Regulation 2021 (EPA Reg), the Applicant's architect, Giles Tribe Architects (and its nominated architect Mr Victor Schneider – NSW registered architect 11157) has prepared a Design Verification Statement, fulfilling the requirements of s 29 of the EPA Reg and confirming that the amended DA achieves the Design Quality Principles set out in SEPP 65. This statement also sets out how the objectives of Parts 3 and 4 of the NSW Apartment Design Guide have been achieved in the design of the amended DA. Accordingly, I am satisfied the amended DA meets the requirements of SEPP 65. 10. The parties agree, and I am satisfied, that State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP Biodiversity and Conservation) is an additional relevant environmental planning instrument. The site is located within the Sydney Harbour Catchment as defined in Ch 10 of SEPP Biodiversity and Conservation. The amended DA includes for on-site detention, erosion and sediment control measures to be installed prior to demolition and throughout construction. Accordingly, I am satisfied Ch 10 of SEPP Biodiversity and Conservation has been appropriately addressed. 11. The parties agree, and I am satisfied, that State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP Infrastructure) is an additional relevant environmental planning instrument. In accordance with s 2.122 of SEPP Infrastructure, the parties agree the DA (as amended) does not constitute traffic generating development. 12. The parties agree, and I am satisfied, that the amended DA is subject to the provisions of State Environmental Planning Policy (Sustainable Buildings) 2022. A BASIX certificate, prepared by LC Consulting Engineers, dated 05 December 2023 has been submitted with the amended DA. Agreed conditions of consent are to be imposed to ensure compliance with the BASIX certificate. 13. Having considered each of the preceding jurisdictional requirements and having formed the necessary view required by s 34(3) of the LEC Act, I find it is appropriate to make the orders agreed to by the parties and now dispose of the matter. 14. The Court notes that: 1. Pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021, the Applicant has amended the DA with the approval of the Respondent. 2. The Court has received the amended DA on 08 December 2023. Orders 1. The Court orders that: 1. Leave is granted to the Applicant to amend Development Application DA0038/23 and rely upon the amended plans and documents referred to in condition 1 at Annexure A. 2. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent's costs thrown away as a result of amending the Development Application in the agreed sum of $28,228 within 28 days of the date of these orders. 3. The Applicant's written request, pursuant to cl 4.6 of the Ku-ring-gai Local Environmental Plan 2015 (KLEP), seeking to vary the development standard for height of buildings as set out at cl 4.3 of the KLEP, is upheld. 4. The Applicant's written request, pursuant to cl 4.6 of the KLEP, seeking to vary the development standard for site dimensions as set out at cl 6.6 of the KLEP, is upheld. 5. The appeal is upheld. 6. Consent is granted to Development Application DA0038/23 (as amended) for demolition of existing structures and construction of two residential apartment buildings comprising 31 apartments over basements and associated civil and landscaping works at 26, 28 and 30 McIntyre Street, Gordon, subject to the conditions of consent at Annexure A. ……………………….. M Pullinger Acting Commissioner of the Court Annexure A (390712, pdf) Architectural Plans (14944064, pdf) ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 December 2023